Tuteur v. Chi. & N. W. R. Co.

• Decision Date: 14 October 1890
• Citation: 77 Wis. 505,46 N.W. 897
• Court: Wisconsin Supreme Court
• Parties: TUTEUR v. CHICAGO & N. W. R. CO.

77 Wis. 505

46 N.W. 897

TUTEUR

v.CHICAGO & N. W. R. CO.

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, La Crosse county.

This is an action for damages for an injury to the plaintiff's intestate while she was a passenger on a train of cars of the defendant in Trempealeau county, caused by a collision at a railroad crossing, September 19, 1888, and from which she died September 25, 1888. She was a widow at the time, her husband having died about four years before. She left, her surviving, three children, to-wit, Robert, about 28 years of age; Bertha, a married daughter, about 26 years of age; and Lillie, an unmarried daughter, who was 21 years of age September 12, 1888. The defendant answered, and, at the close of the trial, the jury returned a special verdict to the effect that the injury to the plaintiff's intestate was caused by an accident at the time and place stated, through the negligence of the defendant, and that such injuries caused her death; that she probably would have lived 12 years and 9 months longer had it not been for such injury; that there was a reasonable expectation that her earnings would have increased the property left by her at her death, had she continued to live, to the amount of $2,500; that her said children, or some of them, had reasonable expectations of pecuniary benefit from the continuance of her life by way of support or gifts, and that the value of such expectation was $2,500; that the pecuniary loss of such children by reason of her death was $2,500; that thereupon the defendant moved for a new trial on the grounds, among others, that said findings, as to such expectation and loss of pecuniary benefit, were inconsistent, and the damages excessive; that upon the hearing of that motion, February 25, 1890, it was ordered by the court that said verdict be, and the same was, thereby set aside, and a new trial granted to the defendant, without terms, unless the plaintiff, within three days thereafter, remitted all damages in excess of $1,000; that, on filing such remission in writing, the clerk was thereby directed to enter judgment for the plaintiff for $1,000, besides costs to be taxed; that afterwards, and on February 28, 1890, and within said three days, the plaintiff elected to remit all damages in excess of $1,000, and thereupon judgment was entered in favor of the plaintiff and against the defendant, for the sum of $1,000 damages, and costs. From that judgment the defendant brings this appeal.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Fruit & Brindley, for respondent.

CASSODAY, J., ( after stating the facts as above.)

The findings of the jury to the effect that the plaintiff's intestate was injured by the negligence of the defendant, and that such injury resulted in her death, as stated, seem to be supported by the evidence. She was, at the time, a widow 61 years of age, engaged in keeping a boarding-house at La Crosse, and had some 20 boarders, to some of whom she furnished rooms and lodgings. There is evidence tending to prove that she was in good health, and for years had been doing a profitable business, keeping boarders; that she made some money besides supporting and clothing her youngest daughter, and occasionally giving small amounts of money to her son. The court charged the jury that the plaintiff could only recover the actual pecuniary loss which the children had sustained by reason of their mother's death. Of course it was impossible to definitely prove the exact amount of such loss. Railroad Co. v. Barron, 5 Wall. 90. The statute¹ expressly authorized...